April 25, 2017

On May 5, 2017, federal law will require restaurants and foodservice businesses with 20 or more locations operating under the same name and serving substantially the same menu items to post calorie information for standard menu items and provide guests with additional nutrition information upon request. The menu-labeling requirement was part of the health care law President Obama signed into law in 2010, and since then several CRA members have expressed concerns about this new law. We have heard from some members that the signage alone required in their businesses under this new law has cost them $10,000+.

One of your fellow CRA members requested we share the following message with our franchisee members of CRA. This is not a message endorsed by the CRA Board, but is shared with you for your information and for you to handle as you choose.

“We still have time to stop, delay or amend the calorie count display regulation, set to go into effect May 5. Please take the five, simple steps outlined in the attached document. Sample wording for your message to policymakers is included, so you can copy and paste for the most part. A few minutes on this critical issue may save you significant money and time in the short and long term. Also, please share these steps with your franchise headquarters for distribution across your chain as well. We appreciate our association’s previous negotiations on our behalf, but, with the change of administration, it is worth a grassroots wave of communication to Washington by franchisees who have a real sense of the impact as the deadline nears. To limit the current calorie display requirement to just a nutritional sheet at the counter and on your website would deliver consumer benefit without imposing such onerous burdens on small business and put franchises at such a competitive disadvantage. Please take a few minutes to follow the instructions on the link to give this effort a chance for success, especially while the window of opportunity for changes like this is open as both sides of the aisle cut various deals to come to an agreement to avoid a government shutdown. — Thank you, Craig Cheatham — Marco’s Pizza (Colorado Springs)”

But why would NRA be supportive of these new requirements? It seems counterintuitive to the work that we do to protect restaurants. Here’s some history according to the NRA:

In 2006, New York became the first city, county or state to mandate menu labeling. Not surprisingly, you have seen this acutely on the labor side, other state and local governments began to adopt the concept once it was passed by NY.

Before long, it was in at least 5 states (Maine, Oregon, California, Vermont, and New Jersey), several counties (4 in New York state, Montgomery County, MD and King County (Seattle)) and cities like Philadelphia. While each was conceptually the same they were all different in some way. This was very challenging for multi-state operators who were forced to often design and get approved menu/ menu boards specific to small geographic areas.

Back around 2009, the spread of menu labeling was rampant. There were bills being introduced at all levels of government – and it wasn’t just in “blue” states or cities. Additionally, the advocates were moving to require more information on the menu. What started with just calories was evolving into calories plus sodium, fat, trans fat etc. This was the Philadelphia model and it was being embraced by the advocate community.

Fighting back wasn’t easy. Menu labeling polls in the high 70s. The multi state operators needed a solution and, frankly, they followed what the packaged food industry did in the early 1990s but seeking a national solution that preempted the states.

While the advocates at the time had more political power (Obama Administration, 60 Democrats in the Senate and a Democratic House), NRA also had some good relationships with Democrats and in the end were able to secure an agreement that was very favorable to the industry. They were able to:

Get national pre-emption over state and local menu labeling laws. The advocates wanted a federal floor not a ceiling.

Limit information on the menu to just calories. The advocates wanted 4 items plus the ability of states to add additional ones.

Add legal protections for providing the information. NRA is not aware of any state or local laws that provided legal protections for the fact that restaurant food is hand prepared and as a result there was going to be greater variability than packaged food.

Small business protection – the law only applied to chains with 20 or more locations nationwide. There is a voluntary program for chains if they choose to provide the information.

Within the last week, there has been more activity. Grocery and Convenience stores are again trying to get exempted which NRA opposes. They believe strongly that we need a federal standard to prevent state and local enforcement. They have a legal opinion that says if May 5th does not happen, we could lose preemption so states could start to enforce immediately.

As the President & CEO of the Colorado Restaurant Association, I believe it is only a matter of time before we see menu labeling come here. There is sentiment on both sides of the aisle on this issue. Although our board has not yet taken a position on menu labeling, we tend to see issues that start in other states, come to Colorado eventually. We are seeing that movement happening faster and faster.